The Second Amendment

[Christopher Valen]

Yesterday’s 5-4 Supreme Court ruling striking down the District of Columbia's ban on handguns and affirming the right to have guns for self-defense in the home raises the question, yet again, as to the meaning of the Second Amendment. Does the amendment specifically protect an individual's right to own guns, or is that right specifically tied to service in a state militia?

The Second Amendment reads, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

Pulitzer Prize winning author Gary Wills in his book, A Necessary Evil, wrote what I consider to be one of the most lucid and scholarly explanations of the amendment. Wills explains that the framers intentionally used the plural “arms” rather than the singular form of the word because “arms” means military service. Similar forms of the word are used in terms such as under arms, call to arms, to take up arms or lay down one’s arms.

The draft of the Second Amendment written by James Madison also lends credence to Wills explanation:

“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”

Madison is clearly referring to the military and to conscientious objectors who are exempted from “bearing arms” for their country.

Wills uses Article VI of the Articles of Confederation to explain the meaning of the word “keep” in the amendment. Article VI reads, “Every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.”

Militias kept their arms in arsenals and armories. If the Congress had meant something other than “in public stores”, they could easily have written, “in the home”.

In his dissent, Justice John Paul Stevens supported Wills interpretation by stating the obvious. The Second Amendment is notable for its “omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense.” It’s important to note that both of the rights were explicitly protected in Pennsylvania and Vermont when the framers wrote the Second Amendment. So why didn’t these intelligent and visionary men add the same words to the Second Amendment?

Wills concedes that there may be other reasons for arguing for a right to own one’s handguns and to keep them at home. It’s just not a constitutional right guaranteed by the Second Amendment.

[John McFetridge]

Well, Christopher, I agree with you. It's funny, to the suppliers of drugs there really are "gateway" drugs. The population treat mariuana as a pretty-much harmless drug (and I agree, especially when compared to alcohol) and very rarely go from marijuana to other, haerder, drugs but they still need to buy it from criminals. Those criminals have no seperation between money from marijuana and month from cocaine, heroine, meth, whatever they can make money form.

Drug laws are a gift to organized crime.

I really want to point out that all of this is rather subtly brought out in my books (coming July 21st!) but I read the stuff on here about promotion ;)

[Christopher Valen]

John M.
It is ironic that our nonsensical drug laws may be contributing to the gun violence we see in our cities. It goes back to our earlier discussion about the "War on Drugs" and how it's been an abject failure. We should be treating drug addiction as an illness, like alcoholism, rather than a crime. That would take away most of the profits from the cartels and drug pushers and force most of them to look for another way to make easy money.

[Christopher Valen]

Naomi,
Pennsylvania and Vermont specifically protected the rights for "hunting" and "self-protection" in their state constitutions at the time the framers were writing the Second Amendment, so I don't think it was a "given" that those rights were taken for granted. Thus, the on-going debate as to what the framers actually meant in the Second Amendment, i.e., guns for militias or military use or for hunting and individual protection.

[John McFetridge]

It's a very tough issue, all right. We're going through it right now in Toronto, the city calling for a ban on handguns every time someone is killed with one.

What I find really ironic is that most of the murders occur when people are fighting over something that's already banned - drugs, often marijuana.

[Christopher Valen]

John F.
Wills explains that the NRA's purpose has drastically changed. Originally, the organization was launched in conjunction with the National Guard and was devoted to military marksmanship. Chronologically, the need for self-protection came out of the Cold War while academic insurrectionism came out of the radicalism of the 1960s. The two camps eventually joined forces.

It's interesting to note that there has been only one significant Second Amendment case decided by the Supreme Court before yesterday's decision. That was in 1939 in the U.S. v. Miller, where the Court declared that a sawed off shotgun was not a militia weapon.

Wills asks the key question as to why the NRA is so desperate for a constitutional right to carry just about any firearm. The NRA is a group who claims to distrust government, yet apparently needs the government's stamp of approval. He posits that guns, particularly handguns, are getting more difficult to defend on grounds like safety or social amity. Given the gang violence and carnage in some of our largest cities, it's not surprising that mayors and city councils have tried to pass laws restricting handgun use.

[Christopher Valen]

John D.
Wills explains that the framers chose to use "bear arms" not because it makes more sense, but because it conveys the correct meaning for military service, which is to "bear arms". The word means, etymologically, equipment and refers to all the "equipage" of war. Thus, bear arms can be used for naval as well as artillery warfare. I highly recommend Wills book, A Necessary Evil, A History of American Distrust of Government.

[John McFetridge]

The Wills book sounds good. I really enjoyed his, "Reagan's America."

The thing is, if that was the intention of the amendment, why was it never enforced?

I'm not American, so I don't know the history, but it seems that sometime between then and now, people started making, selling, buying and keeping (and using) large amounts of personal weapons.

Was there some historical turning point?

[John Dishon]

Maybe they used the plural form because the right to bear "arm" doesn't make any sense?